2013-12 (March 22, 2013)
New Judge; Transition to the Bench; Former Law Firm; Practice of Law
Rules 1.2, 1.3 & 3.10; Rule 1.16 of the Rules of Professional Conduct
Issue:
May a Judicial Official answer questions posed by attorneys to whom the Judicial Official referred cases when the Judicial Official was appointed to judicial office? In this case, the attorneys have asked questions of the Judicial Official such as where certain documents are located in the materials and whether contact information exists for particular individuals.Response: Rule 1.2 of the Code of Judicial Conduct states that a judge “should act at all times in a manner that promotes public confidence in the … impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety. The test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge violated this Code or engaged in other conduct that reflects adversely on the judge’s honesty, impartiality, temperament, or fitness to serve as a judge.”

Rule 1.3 states that a “judge shall not use or attempt to use the prestige of judicial office to advance the personal or economic inters of the judge or others or allow others to do so.”

Rule 3.10 states that “[e]xcept as provided herein, a judge shall not practice law. A judge may act as a self-represented party and may, without compensation, give legal advice to and draft or review documents for a member of the judge’s family but is prohibited from serving as the family member’s lawyer in any forum.”

C.G.S. § 51-47 (4)(c) prohibits a judge from practicing law: “Each judge shall be an elector and a resident of this state, … and shall not engage in private practice….”

Rule 1.16(d) of the Rules of Professional Conduct states as follows:

Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law. If the representation of the client is terminated either by the lawyer withdrawing from representation or by the client discharging the lawyer, the lawyer shall confirm the termination in writing to the client before or within a reasonable time after the termination of the representation.

In Ethical Issues for New Judges, Cynthia Gray discusses issues relating to wind-up of a law practice. Ordinarily there is no exception in the rules dealing with the situation when a new judge is winding up his or her practice. Moreover, no such exception exists in the Connecticut Code of Judicial Conduct. According to Ms. Gray: “The ethical responsibilities owed to a client when an attorney leaves the practice of law to become a judge are no different than those owed when an attorney ends representation of a client for any other reason….”

Taking into account the prohibition on practicing law and the ethical duty to clients in winding up law practice, various ethics advisory committees have noted that, while a judge may not practice law, a judge “may provide information to a former client as part of the continuing duty to protect a client’s interests upon conclusion of representation.” Ethical Issues for New Judges, at p. 7. (See Illinois Advisory Opinion 94-19 and Nevada Advisory Opinion 98-003). A line has been drawn in the opinions, however, distinguishing between the providing of factual information pertaining to the referred matter and the providing of legal advice or litigation strategy. For example, opinions have permitted judges to transcribe notes that were not legible, respond to questions as to historical facts pertaining to the matter that are not readily apparent from the file, provide factual details within the judge’s peculiar knowledge, and respond to similar matters of clarification. (See U.S. Compendium of Selected Opinions §2.7(g)(2001), New York Advisory Opinions 96-128, 95-20, 95-116 & 91-137 and Massachusetts Advisory Opinion 01-2).

Based upon the information provided, including that the inquiring Judicial Official seeks advice as to whether he or she may respond to factual questions that concern the nature and location of information pertaining to the referred matter, the Committee unanimously determined that the Judicial Official may respond to the questions from successor counsel subject to the following conditions:

(1) The Judicial Official may not engage in the practice of law, as that term is defined in Practice Book section 2-44A, including but not limited to providing advice as to legal strategy, and

(2) The Judicial Official may answer questions of the successor attorneys that relate to factual matters not readily apparent from the file or to the nature and location of documents and other historical information but should not answer questions involving legal advice or litigation strategy.